The American judicial system typically requires each party to pay their own way when it comes to attorney fees — in contrast to, say, the British system that has a “loser pays” approach.  The American system can make it difficult for individual plaintiffs to get justice in some cases. If the plaintiff is seeking large monetary damages, she may be able to make an arrangement to pay an attorney on “contingency” or out of the proceeds of the case. But if the plaintiff is seeking non-monetary relief, such as an injunction, this is not possible, and either she, or a pro bono attorney, would have to bear that cost. 

Fortunately, a statute applicable to civil rights laws litigation permits courts to make exceptions to the “pay your own way” American rule and require defendants to pay for the plaintiff’s expenses of hiring an attorney and litigating the case. Sometimes, there are disputes about how much is reasonable to expect the defendant to pay, and those cases end up producing litigation themselves (and thus, get on my radar for possible fodder for blog).  That’s what has happened in the Delaware State litigation.  You may recall the litigation challenging the university’s decision to discontinue its women’s equestrian team.  In approving a consent decree to settle the case on plaintiffs’ terms, the court ordered the university to pay the plaintiff’s attorneys fees — not only for the cost of litigating the case, but also for the cost of continuing to monitor the consent decree.  When the plaintiffs lawyers — which include the nonprofit Women’s Law Project — requested fees for monitoring the consent decree from Delaware State, Delaware State argued that some of the things they had charged for were not reasonable. Recently, the district court rejected Delaware State’s argument and ordered it to pay what the plaintiffs had requested — a total of $77,293.64.  This was on top of the $475,442.21 that Delaware State had to pay the plaintiff’s attorneys  back in 2010 to litigate the case in the first place.

The substance of this particular dispute over attorneys fees, as well as the result, is not particularly unusual or noteworthy, but I offer it here as an example of this important aspect of civil rights litigation. The ability to recover attorneys fees to litigate a case makes it possible for plaintiffs and their lawyers to afford the cost of seeking justice.  Moreover, that Delaware State has had to pay over half a million dollars — in a case that settled even before the lawyers had to litigate motions for summary judgment, a trial, or an appeal, no less! — also serves as a cautionary tale to erstwhile defendants that even where money damages are not on the line, it doesn’t pay to discriminate.

Decision: Foltz v. Delaware State Univ., 2014 WL 4954304 (D. Del. Sept. 30, 2014) (awarding attorneys fees for continued monitoring of consent decree).